Joe Biden

Mr. BIDEN

Mr. BIDEN. Senator Brown is the only one who has a nonhabeas amendment on the Republican side and the only one we have left on the Democratic side, as I understand it, is Nunn-Biden.

Mr. BIDEN. Mr. President, I say to the majority leader that I think when we dispose of the Brown amendment and we dispose of the Nunn-Biden amendment, that other than habeas amendments, there is nothing left. It is my understanding that the leader, at an appropriate time this evening, if we complete action on Nunn-Biden and Brown, would move to vitiate the cloture vote tomorrow. I would assure the Senator, as well, we would withdraw all 5 amendments relating to firearms or ammunition. They would not be considered on this bill.

Mr. BIDEN. Mr. President, again I think we are going to know in a moment whether we will need to debate the Nunn-Biden posse comitatus amendment, but in the meantime while that is being ironed out, I ask my friend from Utah whether or not Senator Brown is available to introduce his amendment. I think that is the only thing we have left.

Mr. BIDEN. Mr. President, we are perilously close to finishing all but the habeas amendments. The Nunn-Biden [[Page S7768]] amendment on posse comitatus is either going to be debated very shortly or accepted very shortly. That leaves, I think, after the vote on the Specter-Simon amendment, we will know then on the outcome of that vote, whether or not the Abraham amendment is still relevant. If Specter-Simon prevails, as I hope it does, then the Abraham amendment would be dropped. The only amendment I am aware of on the Republican side which we do not have any agreement on at this point--we thought we did--was the Brown amendment. If Senator Brown is available, we are ready to enter into a very short time agreement and debate that amendment tonight.

Mr. BIDEN. Mr. President, I move to reconsider the vote.

Mr. BIDEN. For the sake of clarification, I would ask the Senator from California if the certification requirement in her amendment means that a separate certification of a country's cooperation with U.S. antiterrorism objectives must accompany every notification of an arms sale sent to Congress under section 36(b) of the Arms Export Control Act.

Mr. BIDEN. Mr. President, it is my understanding that the chairman of the Judiciary Committees, Senator Hatch, is prepared to accept Kennedy amendment 1218 and the Feinstein amendment 1225 en bloc. I send the two amendments to the desk and ask unanimous consent that they be considered en bloc.

Mr. BIDEN

Mr. BIDEN. Mr. President, again to review the bidding, the only amendment that Senator Specter has remaining is the one that he and Senator Simon just debated. The Simon amendment listed as S. 1234 also drops because that has been merged. So Senator Simon has no other amendment, other than the pending amendment, left. And that would leave, as I said, again only for debate Brown and possibly Nunn, Biden, and possibly Kennedy, but I hope we can accept the the Abraham amendment in a moment.

Mr. BIDEN. If I could respond to the leader, on the disposition of this amendment, in all probability we are prepared to accept the Abraham amendment, and I would urge Senator Brown to come and offer his amendment on Ireland now. Senator Nunn has just come in the Chamber. Hopefully, he can work out with the Republicans their concerns, and if not I hope we would be prepared to move that. So as I look down the Republican list, the only nonhabeas amendments left--because we have accepted most of them--are the Abraham amendment, which I believe we can accept, and the Brown amendment, which I hope Senator Brown will come and offer. There are no other nonhabeas amendments on that side. On the Democratic side, the Kennedy immigration deportation proceeding, I hope we will be able to accept, and hopefully the Nunn provision will be accepted. And they are the only two nonhabeas amendments that we have left after we vote on Specter-Simon and Lieberman. I guess that is it. They are the only two we have--and Brown. If we can get Senator Brown to come and offer his amendment, it will be very helpful.

Mr. BIDEN. Mr. President, I understand the Senator will not move his terrorist organization amendment because he is now satisfied.

Mr. BIDEN. So the only one is the terrorist organization amendment of the Senator from Pennsylvania, No. 1239. Is that correct?

Mr. BIDEN. Mr. President, that is my understanding. I ask my friend from Pennsylvania. But amendment No. 1237, secret proceedings, has been folded into the Specter-Simon amendment. Is that correct?

Mr. BIDEN. Mr. President, I would like to speak very briefly to the point. First of all, I would like to thank both Senators for moving such an important amendment in this hour, and at a time in which I do not think people fully understand how significant this amendment is. Our adversarial system of justice requires that defendants be given evidence to be used against them so that they can prepare a defense. It is kind of a basic element of our entire system. At trial that is what cross-examination is all about, to test the reliability and the basis of information given by a witness. The right to see and confront the evidence against oneself is I think a fundamental premise of the due process clause of the Constitution. Unseen and unheard evidence simply cannot be defended against. How does one defend themselves? The courts have recognized that fact time and again. The Supreme Court has said that secrecy is not congenial to truth seeking. No better instrument has been devised for arriving at the truth than to give a person in jeopardy every serious notice of the case against him and an opportunity to meet him. That was in the Joint Anti-Fascist Refugee Committee versus McGrath, 1951. The court also said: Certain principles have remained relatively immutable in our jurisprudence. One of these is that where the Government action seriously injures an individual and the reasonableness of the action depends on factfinding, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. That was in Green versus McGlory, 1959. So to sum it up all, the dangers posed by secret evidence are neither hypothetical nor are they imagined. Shortly after World War II an American soldier sought to bring his German bride back to the United States. She was excluded at the border on the grounds that she was a security risk. The Supreme Court concluded secret evidence could be used against her since persons first entering the United States do not have the same right. However, the public outrage forced the Government to give her a hearing. And the supplier of the secret evidence turned out to be a jilted lover and she was admitted. Secret evidence runs counter to all the principles underlying due process of law and our judicial system, and it cheapens our system by placing in doubt the accuracy of its decision. So I urge my colleagues to reject the secret evidence and to vote to return this provision to the form in which Senators Dole and Hatch first introduced it. I urge my colleagues to support the Specter-Simon amendment. I yield the floor.

Mr. BIDEN. I suggest the absence of a quorum.

Mr. BIDEN. Mr. President, I say to my friend, this is not intended to capture incidental damage. Say someone in a peaceful protest trips over a hedge or tromps on a flowerbed. That is not the intention here. The key here is ``incidental damage'' that is not intended. That would not be captured by this legislation, as I read the legislation.

Mr. BIDEN. Mr. President, I agree with the Senator from Utah that that is not the intention.

Mr. BIDEN. Mr. President, I suggest the absence of a quorum.

Mr. BIDEN. Yes. No time is set. It was tonight. I believe we are going to have several more votes. We are waiting for a couple Senators to come and offer their amendments. There are very tight time constraints on each of the amendments. If they get here --quite frankly, what happened is we have come over here and people have started to offer amendments and they have ended up being accepted. So that seems to work as a catalyst to get them accepted, too. There is one vote ordered for tonight without a time certain on it. There are probably going to be two or three additional votes.

Mr. BIDEN. We started off about 4 hours ago with 60-some amendments. We are down to--not counting the habeas--about four or five. So we really have been working in his absence. I wanted to assure him of that.

Mr. BIDEN. Mr. President, does the Senator need to send that amendment to the desk?

Mr. BIDEN. Mr. President, the Senator from Pennsylvania is here. He has an amendment, No. 1206, relating to foreign assistance. We have been discussing this with him. We think it is a good amendment. We have suggested a few minor changes relative to the amount of distribution under the amendment. I understand the Senator from Pennsylvania is prepared to send his amended amendment to the desk, and we are prepared to accept it.

Mr. BIDEN. I move to lay that motion on the table. The motion to lay on the table was agreed to. Amendment No. 1206, As Modified, to Amendment No. 1199 (Purpose: To authorize assistance to foreign nations to procure explosives detection equipment)

Mr. BIDEN. Mr. President, we are prepared to accept it as well.

Mr. BIDEN. I say to the Senator from Michigan that I would like to accept his amendment No. 1228. We are attempting to find out whether that can be cleared. If we can clear that amendment, it will take another few minutes to determine that. I suggest, with the majority leader here, that while we are clearing some of these additional amendments, if there is anyone who has an amendment that we cannot clear who is ready to go with their amendment, I would encourage them to move on their amendments.

Mr. BIDEN. We urge the adoption of both amendments.